Tuesday, 25 October 2016

It is said increasingly that we
are living in a post-truth age,
particularly with reference to modern politics.
Fairness and fact are usurped by false rumour and appeals to emotions.

Many solicitors dealing with
personal injury claims will tell you that the insurance industry is a far from
shining example of this murky culture.
We say you can’t trust them.

They have convinced recent past
governments, and much of the population, that injured people pursuing claims
for compensation are largely if not entirely fraudsters and that these claims,
and the costs associated with them, are responsible for relentless rises in
motor insurance costs.

The headline claims are
untrue. This has more to do with the
impact on profits and capital reserves of depressed interest rates over a long
period of time. See Smokescreenfor more on this.

Recently we’ve had yet further
headlines about the rising cost of policy premia, the average expected to hit
£700, despite all the so called curbs on costs that the industry duped a supine
government to implement. Still insurers
insist that whiplash isn’t real and inflate their statistics for “fraud” by the
inclusion of routinely abandoned claims.

The more audacious the yarn, the
bigger the impact – see Make the lie big. It all seems to be one way traffic. No wonder.
The Association of British Insurers (“ABI”) is a well organised and vocal
body representing huge and powerful corporations. It goes without saying they are well funded –
with our money. We pay them to mislead
us - and then pay them more.

We are hearing now about
the reported successes of insurers in defeating claims for what is known as fundamental dishonesty. This was another deterrent introduced a
little over three years ago whereby the penalties for false claims and
exaggeration were increased substantially.

It’s quite right of course that
people who pursue fraudulent claims should face the consequences but the latest
rules have created a climate where ordinary decent people pursuing genuine
claims for compensation to which they are entitled as a matter of law are
terrified of the risks.

Leading defendant law firms now
boast about the number of cases they have seen off by alleging fundamental
dishonesty and we know that a large section of the population would not now be
inclined to pursue a claim following an accident because of the stigma and
fears of this so called “compensation culture”.

Insurers portray themselves as
the white knights on the battlefield, protecting the premium-paying public from
these abuses. They tell the world that
it would be fine to change the rules so that all these expensive claimant
lawyers will drop out of the equation.
Genuine victims, they say, have nothing to fear and can trust insurers
to deal fairly with them and seek that they receive that to which they are
entitled by law.

Believe that?

If so, you may want to do
something about those long, furry ears.

For an example of how fair and
virtuous liability insurers can be, see the report that we posted on our
website earlier this month in the case of McLachlan v South Somerset District Council. It’s
a heart-warming tale of justice being done, despite the skulduggery of the Dark
Side.

The success or failure of public
liability claims often depends on whether or not there have been similar
accidents in the past which alerted the defendant to a need for action. You will see in the website report one of the
highlights of the trial which was the judge’s question “How many people have to
injure themselves before you realise there is a design issue?”

So, you don’t have to be any sort
of expert in this field to understand that if the knowledge and existence of
previous and similar claims can be suppressed and concealed, it’s going to be
far more difficult for the claimant to succeed.

In this case, the District
Council’s insurers lied to us repeatedly about the history of this car
park. They did so in correspondence, in
answer to pointed questions and despite at one stage information from us that
we already knew of at least one claim.

We were told in a letter of 28
June 2014 from insurers that:

“All
other users of the car park negotiated the area without incident”.

We asked them:-

“Are you referring to a particular space in time and group of users or the world at large at any time during which the kerbs have been in place?”.

Claims handler Charlotte wrote to
tell us on 18 July 2014:-

“We can confirm that we are saying there were no other incidents prior to your client’s accident”.

We were at that stage already on
to the fact that the “walking wounded” often limped to the nearest source of
assistance, the Octagon Theatre – see the headline to the report.

Ironically, the defendant council
as owner and control of the Theatre where – according to the manager who gave
evidence at the trial – so many victims reported, produced no records of any
such matters during the course of the proceedings. False disclosure statements,
anyone?

We made that point to them in a
letter dated 6 February 2015. We were
subsequently told, again, on 1 July 2015:-

“We note your comments, we can confirm that our insured are not aware of any other similar incidents or complaints in relation to this matter”.

In fact there had been at least
eight prior incidents. The complaint by one victim, who was injured approximately
five years before our client fell, was presented by then Somerset County Councillor
Cathy Bakewell MBE. In answer to
correspondence from the Head of Engineering and Property at the District
Council, she wrote:-

“Might the council consider highlighting the edges of the kerbs in order to make them stand out more, especially in the evening? Whilst there is lighting in the car park, it does not illuminate the kerbs. Might it be possible for the council to consider some additional lighting to assist pedestrians to avoid tripping over the kerbs?”

The trial judge said, “It is
difficult to think of a starker picture and I find it mind-boggling that the
defendant did nothing”.

But the key point of this piece
is to highlight the seemingly fearless – yet at times inept – attempt to
conceal the truth, with deliberate false statements about the history of the
matter that was crucial to success or failure of a meritorious claim.

Injury claimants who tell lies in
support of their fraudulent claims face the real prospect of going to prison.

Solicitors who connive at such
claims face the risk of being struck-off, losing their livelihood and perhaps
joining their clients behind bars.

What happens to insurance
companies and their employees who tell lies in support of their case?

Friday, 21 October 2016

I could weep as I read the latest
direct evidence of how the Ministry of
Injustice has smashed up our civil justice system. I fear we’re close to
the end of that Road to ruin I wrote
about 18 months ago.

Latest example comes in a case
where we are acting for a creditor whose debt was to be paid, by agreement and
consequent approval of the court, through a scheme of monthly instalments
backed up with a series of adjournments.

It worked well for a couple of
months but then fell victim to the state of affairs at our local court where it
seems that the minimum period of time now to process routine paperwork,
including formal orders, is 5 to 6 weeks.
In the last few months the scheme of adjournments has fallen off the
rails, with the most recent being more than two months. It’s no surprise the payments have dried up
and we are now trying to get it back on course.

No answer to correspondence so
one of my team telephones the court yesterday morning. She speaks to somebody who is new to her role
and doesn’t yet have access to the email system – so she can’t even tell us if
our communication has been received never mind dealt with.

Asked if there was somebody else
that we could speak to who might be able to help us, the answer is that they
are “incredibly short staffed” – so, no.

We could send another email marked
“urgent” to bring this up through the backlog in correspondence but there is no
guarantee because of course our call handler has no idea what’s on the system. Would
we have more luck calling tomorrow when somebody with access might be
available? Well, we are welcome to try
but there is no guarantee…

The last telephone case
management conference I dealt with in the same court, a few weeks ago, was a
farce because British Telecom couldn’t get anybody to answer the phone for half
an hour. I made small talk to the litigant
in person on the other side whilst the judge sat at his desk doing box work and
wondering why the telephone didn’t ring.

He did his best with only 15
minutes of a 45 minute case conference left.
Hopefully next time (if the court is still there) we shall be given a
direct dial number for the usher instead of waiting for somebody to man the
switchboard that also handles all business for the criminal and family courts.

In two other recent instances
final hearings have been postponed because there was no judge available.

This used to be such a reliable
and effective court. We had very capable
and helpful district judges - still do - supported by an administrative team
who always had too much to do but got it
done. We used to complain when they
told us that they were three weeks behind but they would find some more
resource and bring it up to date.

Things happened then.

I talked at the end of last year
to one of the people responsible for that culture – somebody whom you could
always depend on when it was necessary – a real “leave it to me” (and it will
get sorted) type.

I listened then to how the
5-week-old pile of post would come out of the cupboard each day and, after all
the more immediate and urgent stuff had been dealt with, go back in the
cupboard at the end of the day – the only change being that the pile was a
little higher.

I saw the look of desolation in
the once-bright eyes and understood the anxiety to retire and escape at the
first opportunity.

The good people have gone, or are
going. To the extent (partial) of their
being replaced then it’s with young recruits who lack experience, knowledge and
training. Not their fault but they don’t have it.

In response to the last
provisional assessment request we filed came a notice that the “detailed
assessment hearing” had been listed on a date when we should attend and “2
minutes 30 minutes (sic) has been allowed for the hearing”.

We pointed out the error and in
response received “notice that the provisional assessment hearing will take
place…” and in this instance 1 hour and 15 minutes had been allowed. Another
letter to the court drew the assurance that no attendance at the hearing was
necessary. The next order enclosed the
bill provisionally assessed by the district judge in the absence of the
parties.

Since then and approximately a
month later, we have had another ‘order’.

“IT IS ORDERED
THAT this case is on the list today.
However the bill has already been provisionally assessed…”

Magnificent.

I am waiting for an “order” one day “that I will be on holiday four weeks from
today so list that for when I get back – and I am just going out to get a
sandwich now”.

This is “justice” at work
nowadays. This is what people pay us to
grapple with to obtain orders that are a civilised society’s alternative to
self-help and anarchy.

Meanwhile we have people in
Salford who can’t process anything in less than a fortnight hunting for minor
arithmetical miscalculations or errors of procedure (that aren’t) and then
having to refer files to district judges whilst we wait weeks for news of
something happening.

In one case where “proper
officer” and district judge were both doing different conflicting things on the
file on the same day we ended up with a proper procedural mess which cost The
Court Service more than £3,000 in wasted costs (and that was just our side).

I can’t wait for Lord Briggs’
wonderful online courts, monitored by people who don’t have access to the
system and available to people who know nothing of law and procedure.

Sunday, 9 October 2016

Stephen Adams’ ugly polemic in
the Mail on Sunday seems to be branding all lawyers – certainly those involved
in the business of suing the NHS for compensation for victims of clinical
negligence - vultures. What a sweet guy.

He rants about the amounts paid
in costs during the last year in relation to damages claims (excluding costs)
that have trebled from £323 million to around £950 million over the last
decade.

All the rhetoric aside this is
fairly simple. Compensation is only paid in cases where a court decides that the
NHS has been negligent and so the claimant is entitled, according to the law,
to compensation or the NHS accepts that is the likely outcome and settles
before trial.

So – the first fact to get on
board is that all of these expenses arise because of proven or admitted
blunders for which the law says the innocent victim should be compensated.

In other words – and this is the real point of concern – cock-ups are
increasing at a frightening rate. No wonder where the service is so
under-funded and demoralised. No consolation there for the victims of that
growing number of mistakes who, our law says, should be compensated in the only
way possible – by the provision of funds to alleviate their suffering.

And as for costs – guess what? Yes,
they are only payable in successful cases so all the outrage is about the
expense of suing the NHS to pay damages they are liable to pay for getting it
wrong.

Forget the hardworking
individuals in this scenario. I admire them too. This is not about caning well-meaning folk who
are doing their best. It’s about recognising that because these lovely, caring
people are overworked and under-resourced, other innocent citizens are being
failed and in some cases very badly injured or worse.

Let’s be grown up and accept that
if you mess up, you need to make amends. By the way, an apology is a cracking
good start.

I expect that many sane people
see that but may ask, “Yes, but what about the amount of the costs?”

Good question.

First, there are many cases where
there is no justifiable complaint about the costs incurred by the claimant’s
solicitors. Remember that those sums – however much they are – form part of the
total costs paid alongside damages in claims which are proven or admitted to
have merit.

Secondly, there are too many
cases where the people tasked with fighting these claims on behalf of the NHS
lose all objectivity and pragmatism – fighting for the sake of it, where
sensibly they should be conceding the claims and working with victims’ lawyers
to make sure the right amount of compensation is paid.

But they don’t. As the MoS
article briefly mentions, it’s a “culture of defend, deny and delay”.

So, this pushes the costs up –
inevitably. There’s a good claim. Victim’s lawyers know it. What do they do?
Say, “Oh, the NHS are digging in – we’ll have to give up”? Of course not.

See Kerry
Underwood’s analysis earlier this year which contains links to cases where
the NHSLA has been fiercely criticised by judges for its attritional approach.

At this point it’s worth
repeating the unarguable message that the answer to this problem
comes, to a large extent, in two simple parts:

1.Don’t screw up (please)

2.If you do, ‘fess up – promptly

Finally, yes there are cases where
the fees claimed – even though the case succeeded – are too high. In some cases there is a genuine disagreement about what is reasonable. In others,
disreputable lawyers – a minority - are claiming too much.

The easy answer is always that
the court controls, by a formal process of detailed
assessment the amount payable. If the NHSLA thinks the bill is too high,
then it simply forces the matter before the court and if it makes sensible
offer of payment along the way, it can expect to recover its costs of fighting
the assessment.

Problem? There isn’t one – except
the culture of cock-up, cover up and clam up.

Remember – every single payout is
the product of a proven or admitted mistake.

The NHS, NHSLA and parts of the
media are all sick in various ways. Lawyers fighting fairly for justice are
sick of two of them.

As for Stephen Adams, he’s
succumbed to the temptation for personal gain to tar all lawyers with the same
brush. All generalisations are dangerous…

It would be like reading the Mail
and concluding that all newspapers are full of rubbish.